Cite as Crapo v. U.S., 100 F.2d 996 (10th Cir. 1939)
Alton CRAPO v. UNITED STATES.
No. 1734.
Circuit Court of Appeals, Tenth Circuit.
Jan. 17, 1939.
Rehearing Denied Feb. 1, 1939.
Appeal from the District Court of the United States for the
District of Kansas; Richard J. Hopkins, judge.
Clyde Taylor and Harold E. Marshall, both of Kansas City, Mo.,
for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst.
U. S. Atty., both of Topeka, Kan., for the United States.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit judges.
PHILLIPS, Circuit judge.
Crapo was tried and convicted on two counts of an indictment
charging violations of the National Firearms Act, 26 U. S.C.A.
sections 1132-1132q. He was sentenced to serve a term of five
years on each count but the sentence on count 2 was suspended and
he was placed on probation for a period of five years to commence
at the termination of the sentence on count 1.
Notice of appeal was filed on June 11, 1938. On July 6, 1938,
the time within which to file the bill of exceptions and as-
signments of error was extended by the trial court for a period of
thirty days. They were not filed within that time, but this court
under authority of Rule 4 of the New Criminal Rules, 28 U.S.C.A.
following section 723a, extended the time for filing the bill of
exceptions and assignments.of error to November 28, 1938, and
within that time they were duly filed and the appeal docketed. See
Ray v. United States, 301 U.S. 158, 57 S.Ct. 700, 81 L. Ed. 976.
Count 1 of the indictment charged that on or about December
20, 1936, Glenn Van Hook and Alton Crapo had in their possession
at, near, or about an outside garage located in the rear of 1637
Southwest Boulevard, Kansas City, Kansas, a Remington sawed-off
shotgun, serial No. 130007, having a barrel less than 18 inches in
length, to wit, 15-1/4 inches in length, which they unlawfully,
wilfully, and feloniously failed to register with the Collector of
Internal Revenue for the District of Kansas.
Count 2 charged that on or about December 20, 1936, at, near,
or about the rear of 1637 Southwest Boulevard, Kansas City, Kansas,
Glenn Van Hook and Alton Crapo did then and there,unlawfully, wil-
fully, and feloniously have in their possession, custody, and
control one Remington sawed-off shotgun, serial No. 130007, having
a barrel of less than 18 inches in length, to wit, 15-1/4 inches,
which firearm had been transferred in violation of 26 U.S.C.A.
sections 1132b and 1132c, in that they had failed to pay the tax of
$200 on such firearm, to secure stamps showing the payment of such
tax, to affix such stamps to the order for such firearm, and to
furnish a written order on an application blank in duplicate for
that purpose issued by the Commissioner of Internal Revenue.
Count 1 is based upon 26 U.S.C.A. section 1132d, and count 2
on 26 U.S.C.A. sections 1132b, 1132c, 1132e, set out in Note 1.
[footnote 1]
26 U.S.C.A. section 1132(a) defines a "firearm" as follows:
"The term 'firearm' means a shotgun or rifle having a barrel
of less than eighteen inches in length, or any other weapon, except
a pistol or revolver, from which a shot is discharged by an
explosive if such weapon is capable of being concealed on the
person, or a machine gun, and includes a muffler or silencer for
any firearm whether or not such firearm is included within the
foregoing definition."
The evidence of the government established these facts:
Dr. H. M. Wheeler of Kansas City, Kansas, owned certain
garages in the 1600 block on Southwest Boulevard, Kansas City,
Kansas. His wife rented one of the garages to a man who said his
name was Hartman. This man paid the rent until May 25, 1935.
Thereafter, Dr. Wheeler's house burned and he placed a note under
the garage door notifying Hartman to pay the rent thereafter at
Kroger's Grocery Store. In July and October, 1936, Crapo came to
the Kroger Grocery Store, and on each occasion paid Reese, the
store manager, $6 as rent for the garage. Reese gave him receipts
for the, rent in the name of Hartman. On December 15, 1936, of-
ficers of the Kansas City, Kansas, police department located in the
garage an automobile reported to have been stolen. They found in
the automobile a Remington sawed-off shotgun having a barrel of 15
1/4 inches in length, a high-powered rifle, shotgun shells to fit
the shotgun, rifle shells to fit the rifle, pistol holsters,
several sets of license tags from Minnesota, Missouri, and South
Dakota, an overcoat, a raincoat, several cans of oil, and two large
milk cans full of gasoline. : These articles were removed to the
police station and a 24-hour a day watch was placed on the garage
by the police officers. On December 20, 1936, McMullen and Downs,
of the Kansas City, Kansas, police department, were on duty
watching the garage. McMullen saw a man unlocking the garage. He
and Downs immediately ran to the garage, opened the door, and found
Crapo and Van Hook inside. McMullen asked them what they knew
about the car, and they said they would rather not talk. The
officers searched Crapo and Van Hook and found a key on Van Hook
which unlocked the garage door.
The shotgun had not been registered with the Collector of
Internal Revenue for the District of Kansas.
Crapo stated he had known Van Hook for approximately one year;
that he met Van Hook near the Katz Drug Store at Fortieth and Main
Streets, Kansas City, Missouri, and accompanied him to a tavern;
that he desired to purchase an automobile radio, and accompanied
Van Hook to the-garage for the purpose of looking at a radio. He
denied that he paid the rent on the garage, and denied any knowl-
edge of the automobile and articles found therein. He further
testified that he was born in Stafford County, Kansas, and had
lived most of his life in Kansas west of Hutchinson; that in
October, 1936, he worked at his father-in-law's ranch near Elk
City, Kansas; that he there received an injury to his wrist and
went to Wichita and later to Kansas City to obtain medical
treatment for his injured wrist.
At the close of the evidence, counsel for Crapo interposed a
motion for a directed verdict on the ground that the government had
failed to prove that Crapo was in possession of the shotgun, and
had failed to prove that the shotgun had not been registered in
some other district in the United States.
The motion was overruled and an exception duly saved.
Crapo did not challenge the sufficiency of the indictment in
the trial court. He contends here for the first time that count 1
is insufficient because it did not allege that Crapo failed to
register the firearm in the district in which he resided, and did
not allege that he resided in the District of Kansas, and that
count 2 is insufficient in that the National Firearms Act did not
impose upon him the duty to do any of the things which the second
count alleged he failed to do.
18 U.S.C.A. section 556 provides "No indictment found and
presented by a grand jury in any district or other court of the
United States shall be deemed insufficient, nor shall the trial,
judgment, or other proceeding thereon be affected by reason of any
defect or imperfection in matter form only, which shall not tend to
the
prejudice of the defendant."
In Hagner v. United States, 285 U.S. 427, 431, 52. S.Ct. 417,
419, 76 L.Ed. 861, the court said:
"The rigor of old common-law rules of criminal pleading has
yielded, in modern practice, to the general principle that formal
defects, not prejudicial, will be disregarded. The true test of
the sufficiency of an indictment is not whether it could have been
made more definite and certain, but whether it contains the
elements of the offense intended to be charged, and sufficiently
apprises the defendant of what he must be prepared to meet, 'and,
in case any other proceedings are taken against him for a similar
offense, whether the record shows with accuracy to what extent he
may plead a former acquittal or conviction.'"
After verdict, every intendment must be indulged in support of
the indictment. The verdict cures mere formal or technical
defects, unless it is apparent that they have resulted in prejudice
to the defendant. [footnote 2]
The gist of the offense charged in count 1 is the possession
of the firearm and the failure to register the same. Residence in
a particular district is not an element of the offense. It is
merely a collateral fact which determines the proper place of
registration. Count 1 of the indictment charged the elements which
constitute the gist of the offense, namely, possession of the
firearm and failure to register the same. It did not directly
allege the collateral fact which determined the proper place of
registration. But we think that collateral fact is implied in the
allegation that Crapo failed to register the firearm in the
District of Kansas, and that the omission resulted in no prejudice
to Crapo.
The evidence established that Crapo was born in Stafford
County, Kansas; that he lived in that state most of his life; and
that he resided there in October, 1936. A residence once
established is presumed to continue in the absence of coun-
tervailing evidence. [footnote 3] We conclude the evidence was
sufficient to sustain a finding by the jury that Crapo was a
resident of Kansas during the years 1935 and 1936.
The payment of the rent by Crapo, and the fact that he went to
the garage with Van Hook where the firearm was found in the
automobile left in the garage were circumstances from which the
jury was warranted in finding Crapo was in possession of the
firearm.
It is urged that the possession of the firearm by Crapo and
Van Hook was joint, therefore, it was incumbent upon the government
to allege and prove that neither of them registered the firearm in
the district in which he resided. The act requires "Every person
possessing a firearm" to register the same in the district in which
he resides. It follows that registration by Van Hook would not
absolve Crapo from failure to register the firearm in the District
of Kansas, where Crapo resided.
The second count charges Crapo with possession of a firearm
which had been transferred in violation of Sections 1132b and
1132c. The statute imposes the duty on the transferor to pay the
tax and to affix appropriate stamps representing the tax to the
order for the firearm. That portion of count 2 which charged Crapo
with the failure to pay the tax and to affix the appropriate stamps
to the order may be disregarded as surplusage. The written order
contemplated by the act is an order to be given by the prospective
transferee to the transferor on an application form issued in blank
in duplicate for that purpose by the Commissioner. Such order form
is to be made up in part from information to be furnished by the
transferee and part from information to be supplied by the
transferor, and when completed the duty is placed upon the trans-
feror to forward the same to the Commissioner. This is made clear
by Regulation 88 issued by the Commissioner of Internal Revenue
pursuant to Section 12 of the act, 26 U.S.C.A. section 1132k.
It follows, we think, that count 2 sufficiently charged the
transfer of a firearm not in pursuance of the written order
required by Section 1132c, supra, and the unlawful possession of
such firearm by Crapo.
There was no direct proof that the firearm was transferred to
Crapo not in pursuance of a written order issued by the
Commissioner as required by Section 1132c. That, however, was a
negative averment in count 2, the facts with respect to which were
peculiarly within the knowledge of Crapo. He necessarily knew
whether the firearm was transferred to him without the written
order required by Section 1132c, supra. The burden of overcoming
such a negative averment rested upon Crapo. [footnote 4]
Furthermore, Crapo by denying possession of the firearm
impliedly admitted that he did not secure the same pursuant to the
written order required by Section 1132c.
It is urged that error was committed in the admission of the
articles other than the shotgun found in the automobile and
evidence that the automobile had been stolen. The facts with
respect to the other articles found in the automobile were so
interwoven with the facts respecting the firearm as to constitute
part of the res gestae. Furthermore, this evidence tended to show
that the persons rising the garage were engaged in unlawful enter-
prises and were likely to have acquired the firearm unlawfully and
to have failed to register the same. Such a person would naturally
be disinclined to furnish the identification required of the
applicant by Section 1132c. Relevant and competent evidence of
guilt is not tendered inadmissible because it also tends to prove
that the defendant committed another offense. [footnote 5]
We have given careful consideration to the other errors
assigned and deem them to be without merit.
The judgment is affirmed.
FOOTNOTES
1. Sec. 1132d: "(a) Within sixty days after the thirtieth day after
June 26, 1934, every person possessing a firearm shall register,
with the collector of the district in which he resides, the number
or other mark identifying such firearm, together with his name,
address, place where such firearm is usually kept, and place of
business or employment, * * * Provided, That no person shall be
required to register under this section with respect to any firearm
acquired after the thirtieth day after June 26, 1934, and in
conformity with the provisions of sections 1132 to 1132q.
"(b) Whenever on trial for a violation of section 1132e the
defendant is shown to have or to have had possession of such
firearm at any time after such period of sixty days without having
registered its required by this section, such possession shall
create a presumption that such firearm come into the possession of
the defendant subsequent to the thirtieth day after June 26, 1934,
but this presumption shall not be conclusive." 26 U.S.C.A. section
1132d.
Sec. 1132b: "(n) There shall be levied, collected, and paid
upon firearms transferred in the continental United States a tax at
the rate of $200 for each firearm, such tax to be paid by the
transferor, and to be represented by appropriate stamps, to be
provided by the Commissioner, with the approval of the Secretary;
and the stamps herein provided shall be affixed to the order for
such firearm, hereinafter provided for. The tax imposed by this
section shall be in addition to any import duty imposed on such
firearm." 26 U.S.C.A. section 1132b(a).
Sec. 1132c: "(a) It shall be unlawful for any person to
transfer a firearm except in pursuance of a written order from the
person seeking to obtain such article, on an application form
issued in blank in duplicate for that purpose by the Commissioner.
Such order shall identify the applicant by such means of
identification as may be prescribed by regulations under sections
1132 to 1132q: Provided, That, if the applicant is an individual,
such identification shall include fingerprints and a photograph
thereof.
"(b) The Commissioner, with the approval of the Secretary,
shall cause suitable forms to be prepared for the purposes above
mentioned, and shall cause the same to be distributed to collectors
of internal revenue.
"(c) Every person so transferring a firearm shall set forth in
each copy of such order the manufacturer's number or other mark
identifying such firearm, and shall forward a copy of such order to
the Commissioner. The original thereof with stamps affixed, shall
be returned to the applicant.
"(d) No person shall transfer a firearm which has previously
been transferred on or after the thirtieth day after June 26, 1934,
unless such person, in addition to complying with subsection (c),
transfers therewith the stamp-affixed order provided for in this
section for each such prior transfer, in compliance with such reg-
ulations as may be prescribed under sections 1132 to 1132q for
proof of payment of all taxes on such firearms.
"(e) If the transfer of a firearm is exempted from the
provisions of sections 1132 to 1132q as provided in section 1132c,
the person transferring such firearm shall notify the Commissioner
of the name and address of the applicant, the number or other mark
identifying such firearm, and the date of its transfer, and shall
file with the Commissioner such documents in proof thereof as the
Commissioner may by regulations prescribe," 26 U.S.C.A. section
1132c(a)-(e).
See. 1132c: "It sh all be unlawful for any person to receive
or possess any firearm which has at any time been transferred in
violation of section 1132b or 1132c." 26 U.S.C.A. section 1132e.
2. King v. United States, 10 Cir., 55 F. 2d 1058, 1062, 1063;
Coates v. United States, 9 Cir., 59 F.2d 173, 174; Sheridan v.
United States, 9 Cir., 230 F. 805, 310; Hardesty v. United States,
6 Cir., 168 F. 25, 27; Dunbar v. United States, 156 U.S. 185, 191,
192, 15 S.Ct. 325, 39 L.Ed. 390; State v. Davis, 106 Kan. 527, 188
P. 231; Whim v. State, 117 Tenn. 94, 94 S.W. 674; State v. Coleman,
158 La. 755, 104 So. 705, 706.
3. United States v. Deans, 8 Cir., 230 F. 957, 959; Mitchell v.
United States, 88 U.S. 350, 21 Wall. 350, 353, 22 L.Ed. 584.
4. For analogous cases applying the rule see Goodfriend v. United
States, 9 Cir., 294 F. 148, 150, Faraone v. United States, 6 Cir.,
259 F. 507, 509, Giacolone v. United States, 9 Cir., 13 F.2d 108,
110, and McCurry v. United States, 9 Cir., 281 F. 532, in each of
which the indictment charged defendant with possession of a still
without having registered the same with the Collector of Internal
Revenue, and it was held that the burden of proving registration of
the still rested on the defendant, because that was a fact
peculiarly within his knowledge; Montague v. United States, 9 Cir.,
294 F. 277, Gee Woe v. United States, 5 Cir., 250 F. 428, and
Taylor v. United States, 8 Cir., 19 F.2d 813, 816, in each of which
the indictment charged failure to register as a dealer and pay the
special tax as required by the Anti-Narcotic Act, 26 U.S.C.A.
section 1041 et seq., and it was held that the burden of proving
registration and payment of the tax rested on the defendant,
because those were facts peculiarly within his knowledge, and Sau-
vain v. United States, 8 Cir., 31 F.2d 732, 733, and Martinez v.
United States, 5 Cir., 25 F.2d 302, in each of which the indictment
charged the sale, barter, or exchange of narcotic drugs not in
pursuance of a written order on a form issued in blank for that
purpose by the Commissioner, and it was held the burden was on the
defendant to establish the existence of the written order, because
that was a fact peculiarly within his knowledge.
5. Astwood v. United States, 8 Cir., 1 F.2d 639, 642. Coulston v.
United States, 10 Cir., 51 F.2d 178, 180, 181; Hood v. United
States, 10 Cir., 59 F.2d 163, 154, 155; Suhay v. United States, 10
Cir., 95 F.2d 890, 894; Troutman v. United States, 10 Cir., 100
F.2d 628, decided December 8, 1938; Cook v. United States, 8 Cir.,
28 F.2d 730, 732; Dixon v. United States, 8 Cir., 7 F.2d 818, 820:
McCormick v. United States, 8 Cir., 9 F.2d 237, 239.